The Federal System in Australia Part 1

by jonathantjandra ·
Published November 30, 2013
· Updated October 26, 2014

I wrote this essay during a Politics and Law 2 A/B exam in response to the question “Describe how the federal system operates by making reference to the relationship between the levels of government as outlined in the constitution.” It was given 25 out of a possible 25 marks. The Constitution can be found here.

Introduction

The Australian Constitution makes reference to how the government should be run according to the federalist system. Various factors in the last century nevertheless has tipped the federalist system into something that resembles a centralist one. Perceived flaws in the Constitution along with a centralist-friendly High Court have contributed to the imbalance in powers.

Division of Powers

The most important sections that protect the rights of the States from an increasingly centralist system are 106, 107 and 108 of the Constitution, which safeguards the powers of the States.

These three sections are entitled the Saving of the Constitutions, of power of State Parliaments, and of State laws, respectively. They essentially read that each State is entitled to its own Constitution and Parliament, unaffected by their Federal counterparts and ensuring that the States will always retain some degree of autonomy.

In addition, the Constitution outlines the powers of the State and Federal Governments in s. 51 and 52. Some powers, termed ‘exclusive’, are explicitly stated in the Constitution as the Federal Government’s responsibility, whilst ‘concurrent’ powers are those that both Governments may legislate in. Examples of exclusive powers are Defence (s 51. vi) and Trade (s 51. i), whilst concurrent powers include taxation (s. 51 ii).

However, s 109 states that if the laws of the State and the Commonwealth conflict, the latter shall prevail to the extent of the inconsistency. Consider how the Northern Territory’s Rights of the Terminally Ill Act (1995) , which legalised euthanasia, was overturned by the Commonwealth’s Euthanasia Laws Act (1997), although the circumstances in this case are slightly different since the Commonwealth may override any laws made by a Territory.

A third type of power, termed ‘residual’, is defined in s. 107: all those powers not mentioned in the Constitution as being exclusive continue to be the States’ responsibility to legislate in. For instance, Law and Order, and Education are residual powers. Since these powers are not explicitly stated, the term ‘residual powers’ is open to interpretation, as evidenced by several High Court decisions, and the Federal Government is increasingly encroaching upon them.

Referral of Powers

The Constitution also gives the ability for the States to refer a power to the Commonwealth in s. 51 (xxxix) if the maintenance of these powers becomes too expensive. For example, in 1974, SA and TAS gave control of their railways to the Federal Government, whilst VIC and TAS referred their industrial relations in 1999 and 2001, respectively, but the Constitution does not allow the Commonwealth to give back any powers to the States. This arrangement clearly favours the Federal Government.